OATH/KRIMSTOCK HEARING MANUAL

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Randolf Leonard
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1 OATH/KRIMSTOCK HEARING MANUAL Client has right to a post-seizure retention hearing Hearing decides whether the NYPD or Client retains the vehicle while a forfeiture action is pending. o This hearing is not the forfeiture case, that may still be filed post hearing Requesting an OATH Heating: o Notice of Right To Retention Hearing: (see attached 1-2) Client should receive the Notice when arrested It will also be mailed to the registered owner of the vehicle. If not received, contact NYPD to get a copy of the form Form should be completed, and original sent via certified mail (no fax) to NYPD ASAP! Practice Tip: after scheduling a hearing, you can call the NYPD attorney and get the standard settlement offer. This can be useful since it can sometime take over a month for the NYPD to send the paperwork. o Hearing: Hearing will be scheduled within 10 business days or receipt of request for heating They are scheduled quickly and difficult to adjourn Prior to hearing there is a settlement conference, where the OASAS program and fine will be offered again. (standard settlement program). The hearing is on the record in front of a judge with the Arresting officer present (sometimes) The rules of evidence are relaxed so hearsay is allowed. Often times the only evidence presented by the NYPD is the arrest paperwork If client does not testify, it is presumptively an adverse inference against them o Krimstock Test: Heating decision is based on 3 prong test: 1. Probable Cause to Stop 2. Likelihood of the NYPD winning a forfeiture case 3. Likelihood that client would return car if forfeited (often the only prong client can testify about if criminal case is still pending) a. Heightened Risk to Public Safety Standard (see below) 0 Decision: Win Hearing: Client will receive release in the mail within 3 business days of the hearing NYPD may serve summons to commence forfeiture case on client in person at the hearing or in the near future An answer must be served within 20 days of service if in person, 30 days if served by mail (CAP has template) Lose Hearing: NYPD now has power to file forfeiture case Client should make formal demand immediately so that the 25 day limit starts (see DWI Vehicle Seizure Packet)

2 Krimstock Prong 3: Heightened Risk to Public Safety Standard This is the prong most OATH hearings are decided upon The standard is merely whether there is a risk to the public in returning the vehicle to the defendant Factors: There are various and Factors that are considered in making this decision. o The hearing decisions are comprised of a balance of many of the following things. BAC: The initial consideration is the BAC of the client when arrested: o Generally, anything above a.15 is presumptively reckless so a client will lose an OATH hearing See attached chart showing various BAC's and outcomes. Incident: o A narrative of the incident will have to be provided if your client testifies. o Any of the following are negative: Speeding Accidents Reckless Driving Injuries - Medical Attention Vehicle Damages Arrest Charges: o Serious Felony Offenses are highly negative o Criminal Possession of a loaded fn'earm Substantial quantity of controlled substance Criminal History: o No other criminal history is great positive factor in establishing a good character, law abiding defendant o Prior DWI within a recent time period makes it almost impossible to win a hearing o Any prior criminal history can be negative, though Driving Record: o Prior suspensions are always considered negatively Employment: o work history again shows a hard working individual ROR: o Being ROR's at arraignments shows strong community ties Return of the car if NYPD wins forfeiture case: o Another consideration is if the car will be disposed of prior to the termination of a forfeiture case o This turns on: If car is registered in NY If owner is in NY Large/Small Resale Value of the Car.

3 / Blood.131% 150% Alcohol Case Williams Vanegas Info First arrest for driving while intoxicated or impaired. Vehicle was stopped, wedged on top of traffic barrier. "Mere fact of a single arrest for operating a motor vehicle while intoxicated, without more, is insufficient to demonstrate a heightened risk to public safety." Def was driving and swerving.153% "dept failed to offer test results into evidence" but respondent conceded was "high" it Jones MacFarland -first DWI arrest, no criminal or unsafe driving record, court considered defs steady job. -first arrest; "all vehicles are at some risk of loss, theft or damage. Brief mention of accident in police report. Minor accident does not demonstrate heightened risk to public - BUT "a very high BAL might show a recklessness behind the wheel that would substantially heighten the risk to both the public and the preservation of the vehicle." Field sobriety was.156, breathalyzer later showed.14 Declined breathalyzer Reckless driving reckless and endangerment Underlying is gun possession, DUI not -possession of weapon in 3rd.126 Javier Dalley Fung Arnold Jones Bus_t First and only arrest. Car accident-) def sideswiped another car. "impressed me with solid roots in the community." Two jobs, six kids. Accident, half-bottle of rum in seat, no prior arrests or convictions First arrest, cites MacFarland. One prior arrest for "federal charges of stolen property" didn't indicate disposition. Def also admitted prior accidents too. "commission of a crime, without more, is not enough to satisfy this requirement [to prove the heightened risk of public safety.] Had prior convictions (mostly misdemeanors). Protecting son from other son. Considered respondent's demeanor-- remorseful--and substance of testimony to determine that he doesn't pose heightened risk to public. Felony conviction, prior DWI, 1 year license

4 CPCS, CPW, marijuana and failure to obey traffic signal Robbery (1 st and 2nd deg), CPW 2nd, menacing 2nd Serrano Cevallos Solomon Rice Van Rossum revocation, registered in FL Passenger had approached cop to ask for directions. Accident, out of state registration. "over.20% displays a complete disregard for his safety, the safety of passengers and the safety of the public." Suspended license at time of arrest. PO found def slumped over wheel, ignition running. Ran a red, found 74 bags of coke, a loaded.45 handgun and two bags of marijuana. Prior DWI arrest (pg to violation) and an assault conviction, and a robbery arrest --) criminal history + serious nature of these charges = HPS risk Defused his vehicle to flee scene of crime! Possession of loaded firearm relates directly to public safety.

5 POLICE DEPARTMENT " LEGAL BUREAU CIVIL ENFORCEMENT UNIT 2 LAFAYETTE STREET-Sth Eloor NEW YORK, N.Y Dear Vehicle Owner: Enclosed is a Notice of Right to Hearing Regarding Seized. Vehicle.. If you want a hearing as described in the enclosed Notice, it is necessary that'you. }horoughly.compleie and,.. mail the attached form, or return it in person, to the Vehicle Seizure.Unit at the above.address....,.... Please read the form carefully..y0u might of.course, als0 consider consulfing.tegal counsel if you have no:t already done so. :. ;.. : Whether or not you. indicate that you want a heatingby returning the.altached foma;.the...., _... _ " , ".. Property Clerk.of the New York City Police Department may. be willing-to settle._tsclaim against i the Vehicle. If it is, a letter 9utlining the terms. Of the settlement will be:sent to you sh0.rtly.. If. " " ' "..y.. D.. you do not receive such a letter within ten days after receipt Ofthis.notice, please call the;vehicte " " " " ' " " " " " " ' " " ' i:." : '' " " " ' " ' "' ".,.... Seizure Unit at (917"_ When you call t_lease haveavailable,the seizure numberi.of your _._ :..._... _.:.i.:.'.....i... "_... " vehicle which is listed on the top of the enclosed form. Thank you for your consideration in this matter. 2 " " ". - _,-:... _... ":... 1 _ehicle Seizure Unit COURTESY PROFESSIONALISM RESPECT Website: ''n a_ :iin yc.g ovinypd

6 NOTICE OF RIGHT TO RETENTION HEARING PD A (10-06) Pct of Arrest _rrest No. l NO Name (Last, First, M.L) FOR POLICE DEPARTMENT USE ONLY Veh. Seizure No. of Defendant's/Driver's Name (Last, First, M.I.) of Defendants Seized Did Anyone Suffer a Injury As a Result of This Incident? o NO If Yes, Briefly Describe Injury VIN No. NOTICE OF RIGHT TO A RETENTION HEARING You are entitled to a hearing.to determine whether it is valid for the Property Clerk to retain the vehicle seized in connection with an arrest. Please complete this form, make and keep. a copy for yourself, and deliver or mail the completed original form to NYPD Legal Bureau, Two Lafayette Street, 5th Floor, New York, NY 10007, Attention: Vehicle Seizure Unit. When the form is received, you will be notified of the date, time and place where your hearing is scheduled to be held. The NYPD Legal Bureau will do its best to accommodate your sohedule by having the retention hearing on a date when you are available. Please indicate in the space provided below the dates(s), if any, within the next four weeks following the receipt.of this form,.when you are NOT available to attend a hearing. A retention hearing will be scheduled within ten (10) business days after we receive this form, and will be held at the Office of Administrative Trials and Hearings,!ocated at 40 Rector Street, Sixth Floor, New York, NY, 10006, telephone no. (212) The retention hearing will provide you with an opportunity to be heard either yourself or through your attorney with respect to three issues: (1) whether probable cause existed for the arrest the vehicle operator; (2) whether it is likely that the City will prevail in an action to forfeit the vehicle; and (3) whether it is necessary that the vehicle remain impounded in order to ensure it's availability for ajudgment of forfeiture. The burden of proof by a preponderance of the evidence as to each of these issues will be upon the Police Department, and the judge may consider such hearsay and other evidence as the judge may consider reliable. Ifthe police Department proof is insufficient as to any of these issues, the vehicle will be returned to the claimant. Only one person may appear as claimant, and if more thanone of these forms is received by the.police Department, priority wilt go to the registered owner of the vehicle.,,.. Name of Person Accepting Hearing Address Person Accepting Hearing: [] Defendant O Owner [] Other (Specify) List All Dates (Mon - Fd) During The Next Four (41 Weeks. When You Will NOT Be Available To Attend "A Hearing: Is The VehicJe Being Claimed: [] Leased n Financed Defendant's Address Name Claimant's Legal Representative Address [] Owned Outright. I _eteph? NO" ICity IState IZ.JpCode (Apt. No. of Leasing/Financing Company C ame f,! I;.07..o. Telephone No. ( ), Copy ISignature of Claimant Received: I NOTE: This Section MUST be Completed in Full in Order to Process Your Acceptance of the Retention Hearing.

99 Civ (HB) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK THIRD AMENDED ORDER & JUDGMENT

99 Civ (HB) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK THIRD AMENDED ORDER & JUDGMENT VALERIE KRIMSTOCK, et. al., Plaintiffs, - against - RAYMOND KELLY and THE CITY OF NEW YORK, Defendants, - and - The DISTRICT ATTORNEYS of the City of New York, Intervenor. 99 Civ. 12041 (HB) UNITED STATES